## Facts

- Cavazos, a native and citizen of Mexico, frequently crossed the U.S.–Mexico border for years without immigration problems.
- He had a long-term relationship with a U.S. citizen, and they had a child born in the United States in 1974.
- On July 1, 1976, Cavazos entered the United States as a nonimmigrant visitor for pleasure using a border crossing card.
- The same day, he married his U.S.-citizen partner.
- In deportation proceedings, he conceded deportability for overstaying and received voluntary departure.
- Before the voluntary-departure period expired, he moved to reopen to seek adjustment of status under INA § 245 based on an approved immediate-relative petition filed by his spouse.
- The Immigration Judge (IJ) found him statutorily eligible but denied adjustment in the exercise of discretion, citing only Cavazos’s “preconceived intent” to remain permanently at entry.
- Cavazos appealed to the Board of Immigration Appeals (BIA).

## Issues

1. Whether INS Operations Instructions bind immigration judges or the BIA in exercising discretion on adjustment of status applications.
2. Whether “preconceived intent” to remain permanently at entry, without other adverse factors, is sufficient to deny adjustment of status to an immediate relative with substantial family equities.

## Decision

- The BIA sustained the appeal.
- The BIA held that INS Operations Instructions do not bind the IJ or the BIA, but the policy reflected in them may be considered in discretionary decision-making.
- The BIA held that, as a general rule, adjustment should be granted to immediate relatives who could otherwise receive voluntary departure for consular processing under the relevant instruction and regulations, even if there is evidence of preconceived intent.
- Because preconceived intent was the only negative factor and the record showed significant equities (U.S.-citizen spouse and child) with no other adverse matters, the BIA found a discretionary grant warranted and ordered adjustment granted.

## Legal Principles

- INS Operations Instructions are not legally binding on immigration judges or the BIA, but may be considered as persuasive evidence of agency policy when exercising discretion.
- Preconceived intent to remain permanently after entry as a nonimmigrant is a negative discretionary factor, but it is distinct from fraud or willful misrepresentation and is not, by itself, a statutory bar to adjustment.
- For immediate relatives (and similarly situated applicants) who could receive voluntary departure for consular immigrant-visa processing under the relevant instruction and regulations, adjustment should generally be granted notwithstanding preconceived intent.
- When preconceived intent is the only identified negative factor, and substantial favorable equities are present with no additional adverse record facts, denial of adjustment is an improper exercise of discretion.

## Conclusion

The BIA reversed a discretionary denial of adjustment where the IJ relied solely on preconceived intent, holding that internal agency guidance is not binding but may inform discretion and that immediate relatives with strong family equities ordinarily should receive adjustment absent other adverse factors.


In re Cavazos, 17 I. & N. Dec. 215 (B.I.A. 1980)